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Court of Criminal Appeal 17 December 2021

R v JH

[2021] NSWCCA 299

Sexual offences
CRIMINAL LAW APPEAL CROWN APPEAL AGAINST SENTENCE WHERE SENTENCING PROCEEDINGS MISCARRIED WHERE OFFENDER TO BE RE SENTENCED

Citation: R v JH [2021] NSWCCA 299
Court: Court of Criminal Appeal, New South Wales
Date: 17 December 2021
Judges: Harrison J (lead judgment), Davies J, Wright J

Background

The offender was sentenced in the District Court on 3 June 2021 following pleas of guilty to ten principal offences and three Form 1 offences involving child sexual assault and sexual misconduct against nine male victims under 10 years of age. The offences were committed when the offender was aged 17 (counts 1 and 2) and 25 or older (the remaining counts). The sentencing judge imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years and 8 months.

The Crown appealed on two grounds: that the sentence was manifestly inadequate, and that the sentencing proceedings had miscarried because one of the Form 1 offences carried a maximum penalty of life imprisonment. That second offence, count 7, charged sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act 1900 and had been placed on a Form 1 attached to count 6 as a result of the plea negotiation process. The error was not detected by either party or the sentencing judge.

The central procedural question before the Court of Criminal Appeal was not whether an error had occurred (that was accepted), but what should be done to correct it: re-sentence in the Court of Criminal Appeal or remit the matter to the District Court.

  • Whether placing a life imprisonment offence on a Form 1 contrary to s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 caused the sentencing proceedings to miscarry.
  • Whether the Court of Criminal Appeal should re-sentence the offender itself or remit the matter to the District Court for re-sentencing.
  • Whether the Crown's assurance that count 7 would not be separately prosecuted if the Court of Criminal Appeal re-sentenced was a relevant or determinative factor in deciding the appropriate remedy.

Decision

The Court confirmed, consistently with its earlier decisions in R v Issa, Clappison v R, and Paul Campbell v R, that placing a life imprisonment offence on a Form 1 is an error that causes the entire sentencing process to miscarry. That point was not in dispute between the parties.

Harrison J, with whom Davies J and Wright J agreed, held that the matter should be remitted to the District Court rather than re-sentenced in the Court of Criminal Appeal. His Honour drew on the approach taken in Paul Campbell v R, where Hamill J had identified the structural difficulty that the Court of Criminal Appeal has no power to impose a separate sentence for the life imprisonment offence that was erroneously placed on the Form 1. The Court of Criminal Appeal can take that conduct into account as background context to the charged offence, but only where the Director of Public Prosecutions has clearly decided not to prosecute the charge separately.

Here, the Crown's position on whether count 7 would be prosecuted separately had not been definitively settled by the time of the appeal. Harrison J expressed clear discomfort with a situation where the Court of Criminal Appeal's choice between remitting the matter and re-sentencing could itself influence the prosecution's decision about whether to proceed on count 7. His Honour observed that courts do not exercise prosecutorial discretion, and that there should be no appearance of the Court being drawn into that function. The appropriate correction was a clean remittal.

Orders Made

  • Appeal allowed.
  • Sentence imposed by the District Court on 3 June 2021 quashed.
  • Sentencing proceedings remitted to the District Court to be dealt with according to law.
  • Matter stood into the Sydney District Court Arraignment list at 9:30am on Friday 21 January 2022.

Key Takeaways

  • Under s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999, a court cannot take into account on a Form 1 any indictable offence punishable by life imprisonment. The Court of Criminal Appeal confirmed that breaching this prohibition causes the entire sentencing process to miscarry, consistent with R v Issa, Clappison v R, and Paul Campbell v R.

  • Where a Form 1 error of this kind occurs, the Court of Criminal Appeal has no power to impose a separate sentence for the life imprisonment offence that was wrongly listed. It may treat the underlying conduct as uncharged background context, but only in circumstances where the Director of Public Prosecutions has clearly resolved not to pursue a separate prosecution.

  • A Crown assurance that it will not separately prosecute the offender for the life imprisonment count, if the Court of Criminal Appeal re-sentences, does not automatically make re-sentencing in that Court the appropriate course. Harrison J treated that assurance as not the principal factor, and was uncomfortable with any arrangement that might make the Court appear to be influencing prosecutorial discretion.

  • In dismissing the option of re-sentencing in the appellate court, Harrison J emphasised the principle that courts are not invested with prosecutorial discretion, and that there should be no suggestion that the Court's procedural choice between remittal and re-sentencing was itself shaping the decision about whether count 7 would be charged.

  • Remittal to the District Court was the appropriate remedy: the sentencing proceedings had miscarried, and the correction was to send the matter back for a fresh sentencing hearing conducted according to law.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33(4)(b)
- Criminal Appeal Act 1912 (NSW), ss 5D, 7, 12(2)

Cases:
- R v Issa [2002] NSWCCA 206
- Clappison v R [2017] NSWCCA 33
- Paul Campbell v R [2018] NSWCCA 87